Before the U.S. COPYRIGHT OFFICE, LIBRARY OF CONGRESS In the matter of Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies Under 17 U.S.C. 1201 Docket No. 2014-07 Comments of Electronic Frontier Foundation 1. Commenter Information: Kit Walsh Counsel for EFF: Corynne McSherry Marcia Hofmann Mitch Stoltz Law Office of Marcia Hofmann Electronic Frontier Foundation 25 Taylor Street 815 Eddy Street San Francisco, CA 94102 San Francisco, CA 94109 (415) 830-6664 (415) 436-9333 [email protected] EFF is a member-supported, nonprofit public interest organization devoted to maintaining the traditional balance that copyright law strikes between the interests of copyright owners and the interests of the public. Founded in 1990, EFF represents thousands of dues-paying members, including consumers, hobbyists, computer programmers, entrepreneurs, students, teachers, and researchers, who are united in their reliance on a balanced copyright system that ensures adequate protection for copyright owners while facilitating innovation and access to information in the digital age. 2. Proposed Class Addressed Proposed Class 21: Vehicle Software —Diagnosis, Repair, or Modification This proposed class would allow circumvention of TPMs protecting computer programs, [including programs that modify the code or data stored in such a vehicle and including compilations of data used in controlling or analyzing the functioning of such a vehicle,] that control the functioning of a motorized land vehicle, including personal automobiles, commercial motor vehicles, and agricultural machinery, for purposes of lawful diagnosis and repair, or aftermarket personalization, modification, or other improvement. Under the exemption as proposed, circumvention would be allowed when undertaken by or on behalf of the lawful owner of the vehicle [or computer to which the computer program or data compilation relates].1 In addition to computer programs actually embedded or designed to be embedded in a motorized land vehicle, the exemption as proposed and briefed by EFF includes computer programs 1 Brackets denote edits proposed by EFF. EFF’s comments with respect to Proposed Class 22 are incorporated by reference. Page 1 of 21 designed to modify the memory of embedded hardware and compilations of data relating to parts specifications or diagnostic codes. This comment uses the terms “vehicle firmware” or “vehicle software” interchangeably to refer to all the works falling within the proposed class. This comment also refers to diagnosis, repair, and modification collectively as “tinkering.” 3. Overview Opponents cannot establish that the proposed uses are infringing. Instead, Opponents argue that a variety of “non-copyright risks” will occur if the proposed exemption is granted. These “risks” include increased competition and third-party software development, both results that are favored by copyright law. Opponents also speculate about an unlikely array of harms that have no relevance to this rulemaking because, as “non-copyright risks,” they fall within the purview of other laws and regulatory schemes. Opponents have not undermined, much less rebutted Proponents’ showing that an exemption is warranted. Indeed, the factual record in support of the proposed exemption has only grown since our initial filing in November. It is clear that Section 1201 adversely affects not only individual tinkerers, but also independent repair shops and aftermarket companies. Manufacturers openly discuss relying on Section 1201 to handicap competition in the aftermarket, in part by restricting access to the non-copyrightable, functional aspects of vehicle software.2 But analyzing such elements is not an infringement of copyright. Vehicle manufacturers’ aggressive view of the DMCA, combined with their trend towards locking down vehicle software, casts a legal cloud over tens of billions of dollars of the aftermarket economy3 and chills innovation.4 Manufacturers describe a world in which competition, innovation, and vehicle-related services touching on vehicle software occur only to the extent they authorize it. This is exactly the sort of anticompetitive overreach that courts have warned about in the context of Section 12015 and that this rulemaking should help prevent. 2 In the matter of Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies Under 17 U.S.C. 1201 Docket No. 2014-07, Comment of Eaton Corporation (“Eaton Comment”), 2 (“Permitting the copying of ServiceRanger software, or development of a substitute based on the decompiling of Eaton Software or ServiceRanger software, deprives Eaton of the sale of ServiceRanger software”); Comment of Association of Global Automakers (“Global Automakers Comment”), 7 (The proposed exemption would “disrupt” the repair market “by allowing new entrants at little to no cost.”); Comment of John Deere (“John Deere Comment”), 4 (“beneficiaries of the proposed exemption will not be individual vehicle owners who allegedly want to repair, redesign or tinker with vehicle software, but rather third-party software developers or competing vehicle manufacturers”). 3 Appendix A, Statement of David Thawley (“Thawley Statement”) at ¶2. 4 Appendix C, Statement of Thejo Kote (“Kote Statement”) at ¶2. 5 Chamberlain Grp., Inc. v. Skylink Technologies, Inc., 381 F.3d 1178, 1193 (Fed. Cir. 2004) (rejecting plaintiff’s theory “that Congress empowered manufacturers to prohibit consumers from using embedded software products in conjunction with competing products” and explaining that such a rule would upset consumer expectations and “grant manufacturers broad exemptions from both the antitrust laws and the doctrine of copyright misuse.”); Lexmark Int'l, Inc. v. Static Control Components, Inc., 387 F.3d 522, 552 (6th Cir. 2004) (Merritt, C.J., concurring) (“If we were to adopt Lexmark's reading of the statute, manufacturers could potentially create monopolies for replacement parts simply by using similar, but more creative, lock-out codes. Automobile manufacturers, for example, could control Page 2 of 21 Vehicle owners have a legitimate interest in modification, which is part of a vast universe of noninfringing conduct that has long been a part of vehicle enthusiasm. EFF has identified a wide range of such activities, such as ecomodding for better mileage, performance tuning for off-road racing, implementing new features, protecting privacy and safety,6 and simply learning how vehicles work. Opponents attempt to distract from the real risks of a lingering legal cloud over these activities with speculative claims that some people might not know how to safely modify vehicles or that some people might break non-copyright laws in the course of modifying vehicles. People who don’t know how to modify cars and criminals are not waiting to see the result of this rulemaking; people with a particular interest in vehicle software, who care about obeying the law, are. Manufacturers also claim that the adverse effects identified by proponents are negated by the “Memorandum of Understanding” (“MoU”) by which they reached a détente with the Automotive Aftermarket Industry Association (“AAIA”) and the Coalition for Auto Repair Equality (“CARE”).7 This limited arrangement does not speak to most of the adverse effects identified in EFF’s comments (it does not speak to any of the harms discussed above), and the evidence shows that the adverse effects allegedly addressed by the MoU remain prevalent: independent mechanics lack necessary information and tools and are forced to subcontract computer work to dealers, while individuals do not have the opportunity to effectuate their own repairs when dealerships fail them or they need to be self-reliant. The MoU does say that manufacturers agree to sell certain proprietary tools and information to independent repair facilities, but it contains enough limitations that it cannot be expected to eliminate the adverse effects identified by proponents. This limited arrangement by which manufacturers agree to sell certain products to independent mechanics does not address the adverse effects of 1201 on vehicle repair and diagnosis, let alone modification. Proponents have demonstrated that noninfringing uses of vehicle software are adversely affected by the prohibition on circumvention. The Librarian should act to protect innovation, competition, public safety, and user choice by granting the proposed exemption. 4. Technological Protection Measures and Methods of Circumvention Proponents’ descriptions of the technologies that restrict access to vehicle software and the methods of circumventing them do not appear to be in dispute. Nor do Opponents dispute that the entire market of replacement parts for their vehicles by including lock-out chips. Congress did not intend to allow the DMCA to be used offensively in this manner . ”); see 387 F.3d at 553 (Feikins, J., concurring in part and dissenting in part) (“[M]y colleagues and I agree on a number of points regarding this case . We agree that the Digital Millennium Copyright Act (DMCA) was not intended by Congress to be used to create a monopoly in the secondary markets for parts or components of products that consumers have already purchased.”). 6 Just after the initial round of comments were filed, Senator Markey produced a report describing vehicle security vulnerabilities and criticizing auto manufacturers for the manner in which they collect and store private information about drivers. Staff of Senator